West Law Report

Considering further submissions in renewed asylum claim

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From Times OnlineFebruary 8, 2009

Considering further submissions in renewed asylum claim

House of Lords
Published February 9, 2009
ZT (Kosovo) v Secretary of State for the Home Department
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches February 4, 2009

When a claim for asylum had been rejected as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002, and the claimant made further submissions, the Secretary of State for the Home Department had to consider whether those further submissions created a realistic prospect of success under rule 353 of the Immigration Rules (HC 395) and not whether they were clearly unfounded under section 94 of the 2002 Act.

However, since the test under section 94(2) was more generous than the test under rule 353, whichever test was adopted, the claim would have failed.

The House of Lords so held, Lord Hope dissenting in part, when allowing the appeal of the Home Secretary from the Court of Appeal ([2008] EWCA Civ 14) (Lord Justice Buxton and Lord Justice Sedley; Lord Justice Pumfrey agreed with his fellow judges but died before judgment was delivered) who granted an application for judicial review by the applicant, ZT, and quashed the decision of the secretary of state to maintain refusal of the applicant’s claim for asylum and to certify the claim under section 94(2) of the 2002 Act as clearly unfounded.

Rule 353 provides that when an asylum claim had been refused and “any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

Mr Steven Kovats for the secretary of state;
Mr Satvinder Juss for ZT.

LORD PHILLIPS said that in 2003, ZT, a Kosovan Ashkali, a sub-group of the Roma, arrived clandestinely in the UK from Kosovo, then part of Serbia, and claimed asylum and protection on human rights grounds.

He claimed that the Roma constituted a minority that was widely persecuted in Eastern Europe, including Serbia; that 17 years earlier he had married a lady who was not of his ethnicity; that he had concealed his ethnicity from her family until 2002, when they discovered he was Ashkali; that his wife’s brothers then beat him up and took his wife and children away from him; and that they had however managed to follow him to England. He said he feared that if he returned to Kosovo his wife’s brothers would find him and would kill him.

The secretary of state rejected his application on the grounds that the authorities in Kosovo would afford ZT sufficient protection, that if he was fearful of attack from his wife’s family he could reasonably be expected to live in another part of Kosovo and that there was nothing about ZT’s appearance or speech which would lead anyone who was not aware of his ethnicity to suspect that he was anything other than Albanian.

The secretary of state certified pursuant to section 94(2) of the 2002 Act that ZT’s claims were clearly unfounded. The effect of the certification was that ZT could only exercise an out-of-country appeal once he had left the jurisdiction.

ZT then made further submissions to the secretary of state on asylum and human rights grounds, accompanied by additional material. The secretary of state rejected those submissions and maintained the certification of the claims as clearly unfounded.

ZT sought judicial review to challenge the secretary of state’s certification. Mr Justice Collins refused permission to seek judicial review ([2006] EWHC (Admin)) but Sir Henry Brooke granted permission to appeal against that refusal. The secretary of state applied to set aside the grant of leave to appeal. The Court of Appeal refused to set aside the order of Sir Henry Brooke and decided itself to hear the application for judicial review.

The Court of Appeal had held that the secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied to them, and if she had it might have made a difference to her decision.

His Lordship concluded that the Court of Appeal was correct to proceed upon the basis that rule 353 applied to the further submissions made by ZT to the secretary of state. The question then was whether it might have made a difference to her decision if she had proceeded in accordance with rule 353.

The secretary of state carried out the section 94 reconsideration and concluded that ZT’s claim remained clearly unfounded. The rule 353 procedure would first have required her to decide whether she accepted or rejected the further submissions.

That was precisely what she would have done under the section 94 reconsideration. Thus the first stage of the rule 353 procedure would have produced the same result. ZT’s further submissions would have been rejected.

The secretary of state would then have been required to determine whether the further submissions would amount to a fresh claim. The rule 353 procedure thus would have required her to consider ZT’s claim as a whole, just as she would have done under the section 94 reconsideration.

The section 94 reconsideration led the secretary of state to conclude that ZT’s claim remained clearly unfounded.

Might she have concluded that it had a realistic prospect of success had she applied the rule 353 procedure?

Only if the test of whether or not a claim had a realistic prospect of success was more generous than the test of whether or not a claim was clearly unfounded. Plainly it was not. A claim that was clearly unfounded could not possibly have a reasonable prospect of success.

Arguably a claim that had no realistic prospect of success might not be so hopeless as to be deemed clearly unfounded. If so, in carrying out the section 94 reconsideration the secretary of state was more generous to ZT than she would have been had she applied the rule 353 procedure. Whichever course was adopted, she would have rejected ZT’s further submissions and denied him a right to an in-country appeal.

Since ZT was seeking judicial review, as a matter of principle the correct approach was the familiar one of judicial review that involved the anxious scrutiny that was required where human rights were in issue.

Where, as in the present case, there was no dispute of primary fact, the question of whether or not the claim was clearly unfounded was only susceptible of one rational answer. If reasonable doubt existed as to whether the claim might succeed, then it was not clearly unfounded. It followed that a challenge to the secretary of state’s conclusion was a rationality challenge.

There was no way a court could consider whether her conclusion was rational other than by asking itself the same question that she considered. On the evidence before her and the reasoning in her decision letters, she was right to conclude that ZT’s claim was clearly unfounded since an appeal to the Asylum and Immigration Tribunal had no realistic prospect of success.

LORD HOPE, agreeing that the appeal be allowed, said that the Court of Appeal was not correct to find that secretary of state should have approached ZT’s further submissions on the basis that rule 353 applied.

Lord Carswell, Lord Brown and Lord Neuberger delivered speeches agreeing with Lord Phillips.

Solicitors: Treasury Solicitor; Riaz Khan & Co, Barnsley.

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